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The ABCs of Global Legal
Matters
By Erin Payne
& Jason Perkins
When the scope of your clients’ business
needs is subject to sudden and frequent change, adaptability is key. In
some cases, bringing your practice in line with these fluctuating
demands may be as simple as increasing your available resources for
document production or due diligence review. Then comes the day when you
get a call like this:
“We have documents in Spanish, French and
German—possibly other languages. We’re not sure how
many we have or where they are in the electronic files, but
they’ll need to be reviewed as soon as
possible.”
Instantly, a new layer of complexity exists.
Simple document translation isn’t enough. Now you must cull and
identify relevant documents before translation can even
occur.
The process can seem daunting, but it
doesn’t have to be. The introduction of a foreign language
component into your matter can be easily accommodated by breaking down
the process and knowing the right queries to make. Using a hypothetical
Foreign Corrupt Practices Act (FCPA) investigation scenario (below), we
will address the factors pertinent to incorporating foreign language
documents into your client matters. Consider the following:
ABC Pharmaceuticals, Inc. (“ABC”) is
publicly traded on NYSE and a member of the Fortune 500. Through an
internal audit, ABC has identified some possible FCPA
infractions—illegal payments for pharmaceutical contracts in the
United Kingdom, South Korea, China, the United Arab Emirates, France,
and Mexico.
In order to best counsel your client in this
scenario, you first need to ascertain the extent of your language
support needs, considering all relevant external deadlines. What volume
of content do you anticipate will require translation? How many
languages are there? What are they? In our scenario, for instance, there
are six potential languages at play: English, Korean, Chinese, Arabic,
French, and Spanish. Additionally, how much time will you have to
complete the initial review?
If you have a preexisting relationship with a
Language Service Provider (LSP), you would now engage their services to
quickly and efficiently asses your upcoming needs.
Before any translation work can begin, however,
the multilingual documents must first be processed and culled from the
other documents. Next, an initial review of the data must be completed.
For this step, you can opt to use either Machine Translation (MT) with
keyword searching or bilingual reviewers who will perform on-site
document identification. The choice you make for this step depends on
the time available, the level of culling precision you require, and the
quality standards set forth by the court or other governing
body.
Generally, the U.S. Department of Justice (DOJ)
does not accept documents that have been machine translated. However, a
“first pass” MT is often beneficial to identify hot
documents. You can then strategize and determine where you will need to
spend the most time conducting interviews and depositions. MT can also
show whether you will require interpretation for those client interviews
or for any other depositions or negotiations that may occur later on in
the process.
Determining the universe of your foreign
language needs from the outset will maximize your likelihood of success.
Further, if you do not already have a trusted translation partner, this
step will help you negotiate the best possible pricing from your chosen
LSP.
Keeping it
in-house: Not as cost-effective as you may think
“If you think it's expensive to hire a
professional to do the job, wait until you hire an amateur.”
– Red Adair
Assuming you don’t have an LSP already in place, once you
have determined the potential volume of your language needs, you will
need to find the right translation partner—one with the capacity
to handle your known (and potentially unknown) volume requirements
while maintaining the prescribed trial calendar or other deadlines.
Initially, it may seem easier to pull from internal resources –
such as local counsel, in-house resources, or even bilingual law
students – to perform the language-related tasks. However, before
taking this step, you should consider two important factors: cost and
consistency. Professional translation services are invariably more
cost-effective for your client. Accumulating billable hours on
translation and thinning in-house resources that could be better applied
to other aspects of the matter illustrate issues that can be avoided by
using professional translation services.
But a larger problem when you opt out of using an LSP is that
you will likely eliminate the quality control measures that are in place
at LSPs to ensure the delivery of consistent material across the
board—especially with regard to specialized terminology. Opting
out of a professional service provider can drastically affect costs in
the long term, as using an amateur translation resource dramatically
increases the risk of introducing errors.
In addition, with six foreign countries in play for the ABC
investigation, your resources are already likely to be stretched thin.
DOJ and SEC production deadlines come up quickly and normally leave no
room for error. And even the most well laid out production deadlines
must often be scrapped at the last second because of a
less-than-sympathetic investigator. As such, it’s generally wiser
to have the language aspects of the matter handled by a third-party
provider who has the resources in place to accommodate high-volume,
quick-turnaround projects at the drop of a hat.
That’s great, but
what’s it gonna cost?
Every discussion on the subject of hiring an
external resource must include a meaningful conversation about cost.
Before you can engage in this dialogue, you must thoroughly understand
your client’s expectations and budget. As the scope of the project
can change, or costs may need to be recalibrated as you sort the data
and determine the volume of foreign language documents, you’ll
need to educate your client on the need to be flexible. It is also
important to communicate with your LSP: be clear about pain points for
you and your client with regard to cost, quality, and
deadlines.
One important way to lower costs is to leverage
your LSP’s technology offerings. A tech-savvy LSP can easily
employ tools such as glossaries and translation memories, or even
streamline workflows with a centralized platform for requesting,
receiving, and tracking translations.
Consolidation is another a key factor in
lowering costs. By using a single-source solution, rather than several
distributed providers, you can spend less time negotiating with multiple
vendors with differing rates and more time focusing on streamlining
workflows and analyzing the data uncovered in the investigation. You can
then pass these cost savings from consolidation on to your
client.
As demonstrated in the ABC hypothetical, the
sheer volume of translation requests in FCPA cases generally dictates
the necessity of an instituted file transfer plan with your LSP. This
step will save you numerous internal paralegal hours and minimize the
risk of any files being missed.
An integrated
workflow that actually works
At this point, you have determined the foreign
language needs of your matter and consolidated your workflow with one
reliable, tech-savvy LSP. Now it’s time to integrate the
LSP’s strategy with your internal processes to streamline the
collaborative effort. You will need to work with your LSP to ensure that
the process for submitting and delivering documents for translation is
user-friendly and, most importantly, secure. Again, your chosen LSP
should be able to provide options for the use of technology, such as a
translation portal, to ensure a secure, seamless, and streamlined
workflow.
Once you’re ready to proceed, your LSP can
either provide you with a review platform to upload files or,
alternately, simply upload and host the files on your behalf. Otherwise,
your workflow will involve a multi-step process with numerous points of
contact: you notify a consultant, who contacts the e-discovery vendor,
who in turn pulls and converts the files and then – finally
– loads the files for review. Sound tedious? It is—each of
these extra steps will increase the potential for error and
miscommunication. However, by consolidating with an LSP who uses
technology to streamline the case language requirements as a natural and
integrated part of your workflow, you will cut down on the back-end
process and any additional costs.
Time is on my
side…or is it?
The ultimate time saver in an FCPA
investigation, or any international document management scenario, comes
at the hands of the technical staff you work with on a daily basis.
Translation vendors who offer next-generation technical solutions can
save associates, as well as internal and external litigation support
resources, countless hours of duplicated effort. In our example, your
firm should ideally look for a vendor that can deliver translations in
the correct database format to enable them to perform a quick review and
then produce the relevant documents for the DOJ or SEC. If your LSP
lacks this capability, you will be forced to develop workaround
processes that will include countless middleman steps (and headaches!)
for everyone involved.
In short, the foreign language component
of a case does not have to be conducted in isolation from the rest of
the matter. Whether you are working on an international patent
litigation or as counsel for a company like ABC that is facing potential
FCPA violations, the same principles apply: Partner with a tech-savvy
LSP to lay out a clear path early on in the litigation timeline. This
arrangement will save both time and money in the long run for your
client.
Co-authored by Erin Payne
(NY) and Jason Perkins (DC). Payne is Director of Business
Development for TransPerfect Legal Solutions. She is a University of
Georgia Law School graduate who formerly practiced with Sutherland
Asbill & Brennan LLP in both Atlanta and New York City.
Perkins is Director of the FCPA Group for TransPerfect Legal Solutions.
He is a University of Maryland graduate who regularly consults
on FCPA matters. You may contact them directly
at epayne@transperfect.com and jperkins@transperfect.com respectively.
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